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2009 DIGILAW 421 (RAJ)

Pratap Singh v. Jetha Ram

2009-02-09

G.K.TIWARI

body2009
JUDGMENT TIWARI, M.—This is revision under Section 23(2) of the Rajasthan Colonisation (Allotment and Sale of Government Land in the Indira Gandhi Canal Colony Area) Rules 1975 (in short `the Rules of 1975') against the impugned judgment dated 21.4.1994 of Collector Bikaner passed under Rule 22(3) of the Rules of 1975. 2. The facts, in brief, leading to the revision are that the non-petitioner No. 1 Jetha Ram was allotted 15 bighas of land in colony are on 20.1.1997, subsequently through a series of litigations the allotment made in favour of the non-petitioner No. 1 was upheld by the impugned judgment dated 21.4.1994 by District Collector Bikaner, aggrieved against which the instant revision is filed. 3. I have heard the learned counsels for both the parties in this respect. 4. The learned counsel for the petitioner argued that the disputed land was the khudkasht land of the petitioner but in course of time it was declared as government land illegally. Since this land was in possession of the petitioner it was not an unoccupied land available for allotment. Even then it was allotted on 20.1.1977 to the non-petitioner No. 1 unlawfully. This allotment was challenged before Collector who cancelled the allotment on 14.3.1990 against which a revision was preferred in the Board of Revenue who allowed the revision and remanded the case to the District Collector for enquiry whether the land was ancestral or not and whether Jetha Ram and his father Bhagu Ram belonged to joint family or not; but the Collector did not conduct any enquiry as directed by the Board of Revenue and passed the impugned order on 21.4.1994 which is illegal. It was contended on the point of limitation that as soon as be came to the knowledge of the judgment dated 21.4.1994 he filed the revision. Since he was not a party to the matter pending before Collector Bikaner under Rule 22(3) of the Rules of 1975, delay of around 13 years in filing revision should be conducted in the instant of justice. The learned counsel cited 2005 RBJ 502 pleading that the provisions for condonation of delay must be construed liberally, citing 1998 DNJ (SC) 363 and 1998 RRD 525 (B) it was argued that the rules of limitation are not meant to destroy rights of the parties. The learned counsel cited 2005 RBJ 502 pleading that the provisions for condonation of delay must be construed liberally, citing 1998 DNJ (SC) 363 and 1998 RRD 525 (B) it was argued that the rules of limitation are not meant to destroy rights of the parties. Since he was not a party before the lower court, it was argued that fair opportunity of hearing should be given to a person who is aggrieved following the principle of natural justice. The learned counsel cited 2006 DNJ (Raj.) 257, 2001 RBJ 603, 1990 RRD 504, 1984 RRD 659 and 1993 RRD 617. It was also contended that the petitioner had filed a regular revenue suit which was decreed, against which an appeal was preferred in the court of Revenue Appellate Authority who allowed the appeal against which second appeal is pending in the Board of Revenue. The learned counsel for the petitioner pressed for quashing the impugned judgment dated 21.4.1994. 5. Vehemently countering the contentions of the petitioner, the learned counsel for the non-petitioner argued that the revision against the order dated 21.4.1994 was filed after delay of 13 years as such revision is expressly time barred. It was also argued that there was a regular suit pending before the competent revenue court. In a suit pending before the trial Court, the non-petitioner Jetha Ram had filed written statement on 11.10.1995. Thus, on 11.10.1995 the petitioner came to the knowledge of the allotment of the disputed land to Jetha Ram and the impugned judgment dated 21.4.1994 but even then the petitioner did not file revision in time as such it was absolutely wrong that he came to know about the impugned judgment on 11.4.2007 as alleged in the memo of revision. So the revision should be rejected on the point of limitation only, as the petitioner must have been vigilant and not indolent as held in 2006 RRD 713. It was contended that the non-petitioner has become khatedar tenant by now pursuant to the allotment made to him on 20.1.1977; his khatedari right now cannot be extinguished through a revision petition. Since an appeal in respect of the same disputed land is already pending before the Division Bench of this Court, rights and title of the parties would be decided in that appeal and not through this revision. Since an appeal in respect of the same disputed land is already pending before the Division Bench of this Court, rights and title of the parties would be decided in that appeal and not through this revision. It was pleaded that application under Section 96 of the Civil Procedure Code (C.P.C.) filed by the petitioner is not maintainable, as the provisions of section 96 of the C.P.C. are not applicable to revision but to appeal. 6. I have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the record. 7. So far as the locus of the petitioner for filing revision is concerned, rule 23(2) of the Rules of 1975 under which the revision is filed says that any person aggrieved by the final order of Colonisation Commissioner can file revision within 60 days of the date of such order. As such I am not inclined to agree with the argument of the learned counsel for the non-petitioner that the petitioner has no locus to file the revision. 8. I am not inclined to agree with the petitioner that Collector Bikaner has not enquired into the matter whether the land is ancestral or nor. Perusal of the impugned judgment clearly shows that Collector got the matter looked into pursuant to directions of Board of Revenue and has expressly held that the allotted land was the self-acquired property of the father of Jetha Ram and not ancestral land. As such it cannot be concluded that Collector Bikaner has ignored the directions of the Board of Revenue given earlier. The petitioner has not denied allotment of the impugned land to the non-petitioner, but it is pleaded that the land was in his possession and not available for allotment. Presuming, though not admitting, this plea to be a fact, it does not make the land occupied within meaning of section 5(27) of the Act of 1955. 9. As far as period of limitation for filing revision is concerned, it is 60 days from the date of passing of the impugned judgment according to rule 23(2) of the Rules of 1975. In this case the impugned judgment is of dated 21.4.1994, whereas the revision against it is filed on 8.6.07, i.e., after a period of 13 years- much beyond the permissible period of 60 days prescribed under the Rules. In this case the impugned judgment is of dated 21.4.1994, whereas the revision against it is filed on 8.6.07, i.e., after a period of 13 years- much beyond the permissible period of 60 days prescribed under the Rules. The reason given by the petitioner for this inordinate delay is that he came to the knowledge of the impugned judgment on 11.4.07 as stated at para 6 of the memo of revision but this contention of the petitioner is not corroborated by the perusal of the record. 10. It is worth mentioning here that the petitioner has filed a regular suit against the non-petitioner for declaration of his khatedari right. In this suit the non-petitioner Jetha Ram filed written statement on 11.10.1995 in which it was expressly stated at para 15 of the written statement that the suit land was duly allotted to him and this allotment was upheld by District Collector Bikaner by his judgment dated 21.4.1994 - the same judgment which is now challenged in revision. Evidently, the plea of the petitioner that he came to the knowledge of the impugned judgment dated 21.4.94 on 11.4.07 is belied vis-a-vis information conveyed to the petitioner vide para 15 of the written statement filed by the non-petitioner on 11.10.95. Thus there is no reason not to believe that the peti-tionner came to the knowledge on 11.10.95 if not before it. In such a situation, the petitioner could have filed revision within 60 days from the date of know-ledge as conveyed on 11.10.95; but this has not been done and the petitioner slept over the matter showing his indolence rather than vigilance as held in 2006 RRD 713. Apparently the revision is grossly time barred; but before throwing away the revision purely on technical ground of limitation it is wor-thwhile to have a glance at the merit of the revision as held in 1998 RRD 319. 11. The impugned allotment was made on 20.1.1977 on the basis of which the non-petitioner has by now acquired khatedari right in the disputed land. Obviously khatedari right of a tenant can be extinguished only through due process of law as contained in Rajasthan Tenancy Act 1955 (in short `the Act of 1955') and not through revision under Sec. 23(2) of the Rules of 1975. No rights and title will be decided in the instant revision even if it is allowed for the sake of argument. No rights and title will be decided in the instant revision even if it is allowed for the sake of argument. The presumable effect of allowing this revision would be that the disputed land will become a government land; it will not vest in the petitioner. As such the petitioner would not stand to gain through outcome of this revision. This is admitted fact that the petitioner has already filed a regular suit which is pending in the competent revenue court. Both the parties have informed this court that presently second appeal is pending before the Division Bench of this Court. It is, therefore, clear that rights and title of the contesting parties would be decided by adjudication of the dispute in the regular suit/appeal where both the parties are agitating their claims. It is held in 1998 DNJ (SC) 363 that rules of limitation are not meant to destroy the rights of the parties; agreeing with this pronouncement it is respectfully submitted that rights of the parties would be decided in the revenue suit/appeal which is still pending before the court and not in this revision. Rule of limitation should be construed in such a way that it does not foreclose the avenues of the aggrie-ved party from establishing its rights and title; but no rights and title are going to be established and ascertained through the instant revision petition. The proper forum for declaration of the said rights and title is through the regular suit/appeal which is still pending. Thus the revision is lacking in merit also. 12. In view of the foregoing discussion the revision fails. Collector has neither committed jurisdictional error nor acted with illegality or material irregularity. Resultantly the revision is dismissed. Pronounced.